M.D.Fla.: Def failed to show equitable right to return of property under 41(g) while he’s in jail

Defendant failed to make a showing for equitable relief for return of property under Rule 41(g) while he’s in jail. United States v. Rehaif, 2017 U.S. Dist. LEXIS 61019 (M.D. Fla. April 4, 2017):

After considering the Richey factors, the undersigned finds that Defendant has not made a sufficient showing to warrant the Court’s use of its equitable jurisdiction. With regard to the first Richey factor, Defendant has not shown “a callous disregard [of his] constitutional rights.” Richey, 515 F.2d at 1243-44. With regard to his cellular phones, Defendant voluntarily relinquished them and consented to their search. Doc. No. 1 at 3-5; Doc. No. 119 at 4. It is well established that “[a] consensual search is constitutional if it is voluntary…[and] is the product of an essentially free and unconstrained choice.” United States v. Acosta, 363 F.3d 1141, 1151 (11th Cir.2004) (citations and internal quotation marks omitted). With regard to his passport, it was seized incident to his arrest under 18 U.S.C. § 922(g)(5). Doc. No. 115 at 1 (noting that “at the time of the arrest[,] the following personal property was seized…”); Doc. No. 119 at 5. The Supreme Court has held that searches incident to a valid arrest are constitutional. See U.S. v. Edwards, 415 U.S. 800, 810, 94 S.Ct. 1234, 1240, 39 L.Ed.2d 771 (1974) (“It is, of course, well settled that the Fourth Amendment permits a warrantless search or seizure incident to a constitutionally valid custodial arrest”). Thus, because the Motion fails to provide any evidence as to how law enforcement disregarded his constitutional rights, the Motion fails to meet the first Richey factor.

The Motion also fails to meet the other three Richey factors. The Motion fails to show Defendant’s need for the property. Defendant is currently incarcerated, and thus the undersigned finds Defendant has no urgent need to possess his passport and cellular phones. The Motion also lacks information as to how Defendant would suffer irreparable injury if his cellular phones and passport are not returned. The Fifth Circuit has held that “factor of irreparable injury encompasses such matters as whether the materials would lead to a criminal prosecution.” U.S. v. Chapman, 559 F.2d 402, 407 (5th Cir. 1977). Here, Defendant has already been convicted of violating 18 U.S.C. § 922(g)(5). Doc. No. 71. Furthermore, Defendant has not presented any evidence showing that information on his cellular phones or his passport would lead to additional criminal charges. Finally, the Motion fails to show that Defendant does not have an adequate remedy at law.